Detained Without Due Process: Is Indefinite Immigration Detention Unconstitutional?

Every year, the United States holds hundreds of thousands of immigrants in detention centers across the country. These individuals are subjected to prolonged periods of incarceration in a complex network of prisons and jails, where there is little oversight to ensure that conditions are humane and detention is not arbitrary. Over the past several years, the use of detention as an immigration enforcement strategy has increased, causing massive backlogs in the system and longer periods of detention. In many cases, immigrants are held for months or years before their first appearance before a court.

One of the most fundamental rights of criminal defendants, the right to a bond hearing within a reasonable length of time after being arrested, is not currently afforded to detained immigrants in Massachusetts. Instead, immigrants can languish in detention facilities for years without a finding that they are a danger to society or a flight risk. Until recently this practice was the national norm, but it is now being scrutinized by various Federal Circuit Courts who have ruled that indefinite detention without a bond hearing violates the due process rights of detained individuals.[1] The First Circuit might be the next to follow suit; on November 3rd, it heard oral arguments on a class action lawsuit brought on behalf of immigrants held in Massachusetts detention facilities for longer than six months without bond hearings. A favorable decision could alter the lives of thousands of immigrants in the circuit, and could prompt action on a national scale to end this practice.

What is immigration detention?

Violating immigration law is not a crime. It is a civil violation for which immigrants go through a process, overseen by the Department of Homeland Security, to determine whether they can remain in the United States. Some immigrants are picked up after crossing the border illegally and are held in detention until an immigration judge hears their case. Others are arrested on criminal charges after having lived in the United States for months or years, and are detained while they await a decision on whether they will be deported. The use of detention is often based on deeply flawed justifications such as deterring future migration, a reason that not only lacks empirical support, but also violates international and domestic law.[2] However, the most commonly offered rationale for prolonged detention is to ensure that immigrants show up for their court dates before an Immigration Judge, instead of disappearing into American society after arrest.

Despite the explosive increased in detention in recent years, there are very few standards regulating conditions in immigration detention facilities. This is partly because these centers were originally designed as short-term holding facilities, where individuals waited for a matter of days before a judge heard their cases. However, now that there is a substantial backlog of cases, immigrants endure these substandard conditions for much longer. They are frequently not provided adequate medical or mental health treatment, access to telephones, or legal services. Few detention centers have law libraries and the vast majority of detainees never receive legal representation, making it almost impossible not only to prepare a compelling immigration case, but also to complain about substandard treatment in detention. Immigrant detainees are routinely denied the opportunity to appear before a court to have a bond set; instead, they are forced to endure harsh conditions of confinement until their case is eventually heard, even though they may pose no risk to society and would not be considered a flight risk in the meantime.

Recent challenges to indefinite detention

Recently, the practice of detaining immigrants indefinitely without a bond hearing has been challenged in the Federal Ninth and Second Circuits on due process grounds. On October 28th of this year, both circuits published opinions that rejected this policy, giving many detainees in these circuits and across the country a lot to be hopeful about:

In Lora v. Shanahan, No. 14-2343 (found in the context of an appeal of a habeas petition), the Second Circuit held that non-citizens cannot be subjected to prolonged periods of detention under a mandatory detention statute while their deportation cases are pending, and therefore must be given a bond hearing within six months of their detention. The decision also explicitly acknowledges that noncitizens with prior criminal records should not be presumed “dangerous,” especially if the crimes in question are low-level, if the individuals have shown proven rehabilitation, and if they have significant family and community ties. Particularly notable is the heightened standard that must be used for new bond hearings under Lora; in ordinary bond hearings under the detention statute, the noncitizen has the burden to show that he would not pose a danger to society and that he does not pose a flight risk.[3] However, the Lora court held that in the case of an individual who has been detained for six months under the statute, the government must establish “by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community.”[4]

On the same day, the Federal Ninth Circuit decided Rodriguez v. Robbins, No. 13-56706, a class-action lawsuit on behalf of immigrant detainees subject to prolonged detention without individual bond hearings in Southern California. The Ninth Circuit held that immigrant detainees subject to mandatory detention due to certain prior convictions, as well as asylum seekers, are entitled to bond hearings after six months of immigration detention. Furthermore, the Ninth Circuit found that the government must continue to provide periodic bond hearings every six months in cases involving prolonged detention, and that immigration judges should consider the length of detention in determining whether continued detention is permissible.[5]

The First Circuit Challenge: Reid v. Donelan

The most recent challenge to the practice of no-bond detention is a case before the First Circuit called Reid v. Donelan. The plaintiff in Reid is a legal permanent resident and veteran living in Connecticut who was placed in removal proceedings as a result of minor criminal convictions including drug possession. While in removal proceedings, Mr. Reid sought relief against deportation to Jamaica under the Convention against Torture, and simultaneously filed a federal habeas petition in the U.S. District Court for the District of Massachusetts contending that his prolonged detention without a bond hearing violated immigration statutes and the due process clause of the Constitution. The U.S. District Court agreed, granted Mr. Reid’s petition, and ordered a bond hearing. Mr. Reid was subsequently released on bond.

However, because the DHS routinely holds detainees like Mr. Reid for months or years without a bond hearing, Mr. Reid moved to represent a class of ICE detainees in Massachusetts who have been held for more than six months. The District Court granted the motion for class certification and appointed the Yale Worker and Immigrant Rights Advocacy Clinic as counsel. The clinic argued the case before the first circuit on November 3rd.[6]

What a favorable ruling could mean

A ruling in favor of the petitioners could have significant effects not only for those held in detention facilities in the First Circuit, but also detainees across the country. The practice of no-bond detention has been the subject of increased scrutiny and media attention in the past few years, and national momentum toward ending this practice could prompt executive action to eliminate it for good. The Obama administration should use this moment as an opportunity to reconsider its arbitrary detention regime that perpetuates human rights abuses. Without a change in the national policy, immigrants will continue to be held across the country under inhumane conditions, isolated from family and legal counsel. A bond hearing within six months is certainly an improvement from the status quo, but immigrant detainees—especially those with minimal or no contact with the criminal justice system—should not be in detention in the first place.

There has been an intensifying national conversation in the past few years around many criminal justice policies such as mass incarceration, harsh drug enforcement policies, and mandatory minimum sentences. These policies have resulted in an arbitrary system that systematically destroys poor communities of color. The draconian policies of mass detention and deportation of immigrants grew out of the same tough-on-crime mania of the 1990s, yet have not been addressed to nearly the same extent. Both systems are due for massive and wide-reaching reforms; just as our racist and classist criminal justice system must be overhauled, so must our system of mass detention and deportation of immigrants.

[1] As far back as 1896, the U.S. Supreme Court ruled that the Fourteenth Amendment to the Constitution is not confined to the protection of citizens. Wong Wing v. United States, 163 U.S. 228 (1896)

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The Harvard Civil Rights-Civil Liberties Law Review is now accepting submissions for Volume 55, Issue 2 of our journal. We would like to invite you to submit any of your manuscripts that relate to the broad umbrella of civil rights and civil liberties.